Appeal from the Circuit Court of Kane County, No. 11-CF-479 Honorable John A. Barsanti, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Ruben Betance-Lopez, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010)). On appeal, defendant challenges one of his convictions of predatory criminal sexual assault of a child, raising two contentions of error: (1) the trial court improperly relied on a transcript of an audio-recording as substantive evidence, and (2) the State failed to prove his guilt beyond a reasonable doubt. Because we conclude that the trial court properly relied on the transcript as substantive evidence and that the State proved defendant's guilt beyond a reasonable doubt, we affirm.
¶ 2 I. BACKGROUND
¶ 3 On May 19, 2011, a grand jury returned a 16-count indictment, charging defendant with committing offenses against M.M., his 6-year-old step-granddaughter, between September 1, 2010, and March 5, 2011. Relevant to this appeal, count I charged defendant with predatory criminal sexual assault of a child in that he committed an act of sexual penetration by putting "his penis in the sex organ of M.M." Count VII charged defendant with predatory criminal sexual assault of a child in that he committed an act of sexual penetration by putting "his penis in the buttocks of M.M." Count XIV charged him with aggravated criminal sexual abuse in that he "placed his penis on the buttocks of M.M." for the purpose of sexual gratification or arousal.
¶ 4 A bench trial commenced on March 4, 2013. Karla Betance testified that she was M.M.'s mother and defendant's stepdaughter. On March 5, 2011, she and M.M. lived with defendant. Around 2 p.m. that day, Betance arrived home with her friend, Maria Trejo, and called out to M.M. to come downstairs to eat. M.M. did not respond, so Betance went upstairs to find her. The door to defendant's room was locked, but Betance was able to open it. Upon opening the door, she saw defendant stand up from the bed. M.M. was in the bed, partially covered by a blanket. It appeared to Betance that M.M. was pulling up her pants. Betance removed the blanket and saw that M.M.'s pants and underwear were down.
¶ 5 Betance and Trejo immediately drove M.M. to an urgent care clinic. During the drive to the clinic, Betance asked M.M. what had happened, but M.M. was crying and would not answer. M.M. said that she would tell Betance what happened if Trejo exited the car. Betance stopped the car, and Trejo got out. M.M. then told her mother that defendant "would put his pito in her chochita." According to Betance, "pito" meant "penis, " and "chochita" meant "vagina." Trejo then returned to the car, and they drove to the clinic. At the clinic, M.M. related to the doctor the same information that she had related to Betance in the car.
¶ 6 M.M., who was eight years old at the time of trial, testified that defendant was her "grandpa" and that she had lived with him at some point. When asked what happened with defendant, M.M. testified, "He was doing something bad to me." She testified that it happened in defendant's room, where M.M. would go to watch the Disney channel. She and defendant were under the covers, and she was on her back, while defendant was on his side. M.M. testified that his "private parts" touched her "on the back of [her] private parts." The State showed M.M. a drawing of an adult male and asked her to place an "X" on the part of the body that had touched her. She marked an "X" on the male's penis. The State then showed her a drawing of a female child and asked her to place an "X" on the part of the body that defendant had touched. She marked on "X" on the female child's buttocks.
¶ 7 Dr. Vipuli Jayensinghe testified that she was a physician at Kendall Immediate Care, where she examined M.M. on March 5, 2011. M.M. told Dr. Jayensinghe that her grandfather would put "his pipito in her pee area, " that it hurt when he did it, and that it had happened several times. Dr. Jayensinghe's physical examination revealed three small red dots, as well as redness in the left pubic area. The doctor concluded "mostly by the history" that M.M. had been sexually abused. She called the police and sent M.M. to the emergency room for further examination.
¶ 8 Dr. Sangita Rangala testified as an expert in the field of "sexual assault examination of children." On March 5, 2011, she examined M.M. at the pediatric emergency department of Edwards Hospital and completed a sexual assault kit. As part of the sexual assault kit, she collected M.M.'s clothing and swabbed the internal and external parts of the vagina and anus. She circled on a diagram of the female anatomy the areas that she swabbed. The same swab was used for the external and internal swab of the anus.
¶ 9 Dr. Rangala testified that she categorized her examination of M.M. as "intermediate, " because there were "no acute findings of sexual assault trauma." However, the doctor explained that the absence of findings of acute trauma did "not at all" indicate the absence of sexual abuse. She testified that 98% of her examinations were normal, because "[a] lot of times, abuse do[es] not leave a mark" or it leaves only redness or irritation that disappears within a few hours.
¶ 10 Christopher Webb testified that he was a forensic scientist with the Illinois State Police and that he performed forensic testing of the evidence collected from M.M. as part of the sexual assault kit. The vaginal swab, the anal swab, the external genitalia swab, and the underwear all tested positive for semen. The semen stains on the underwear were in the "inside front area" and "inside crotch area." The semen found on the underwear produced a male DNA profile from which defendant could not be excluded. The semen found on the external genitalia swab produced a male DNA profile that matched defendant's DNA profile. The semen found on the anal swab did not produce a sufficient amount of male DNA to develop a DNA profile.
¶ 11 Orlando Arroyo testified that he was a child protection investigator with the Illinois Department of Children and Family Services. He was assigned to the Kane County Children's Advocacy Center, where he interviewed M.M. on March 7, 2011. His interview of M.M. was recorded, and the video-recording was played at trial.
¶ 12 Arroyo further testified that he participated in an audio-recorded interview of defendant with police officer Timothy Bosshart at the Aurora police department on March 7, 2011. During the interview, Officer Bosshart spoke English, defendant spoke Spanish, and Arroyo served as the interpreter. Specifically, Officer Bosshart asked questions in English, Arroyo repeated them in Spanish, defendant answered in Spanish, and Arroyo repeated the answers in English. According to Arroyo, defendant admitted during the interview to rubbing his penis on M.M.'s vagina and buttocks. When asked how defendant described touching his penis on the buttocks, Arroyo testified that he "described just a circular motion around the-on the buttocks not the anus."
¶ 13 Before playing the audio-recording of the interview for the court, the State showed Arroyo a written transcript of the recording, in which the English portion of the interview was transcribed verbatim and the Spanish portion of the interview was translated into English. Thus, each of defendant's answers appeared twice in the transcript-one version was the verbatim English transcription of Arroyo's live interpretation/translation of defendant's answer, and the second version was the transcriber's English translation of defendant's Spanish answer. Arroyo testified that he had reviewed the transcript and that it "fairly and accurately translate[d] from whatever Spanish words were made to English." He further testified that the transcript fairly and accurately transcribed the interview.
¶ 14 The State moved to admit the written transcript into evidence, and defense counsel objected on two bases. First, defense counsel argued that "we don't know who transcribed those audio statements" and "we don't know whether [the] Spanish portion[s] [were] translated correctly and accurately." Second, defense counsel argued that the transcript was unnecessary and improperly "highlight[ed]" defendant's statements, when the recording alone was sufficient.
¶ 15 The court overruled the objections, finding that Arroyo's testimony that he reviewed the transcript and that it fairly and accurately reflected both the English and Spanish portions of the recording was sufficient to lay a foundation to admit the transcript. Further, the court found that the transcript did not "highlight" the evidence, because the Spanish portions of the recording "would have no meaning" to the court without the English-translation transcript.
¶ 16 At this point, defense counsel offered a third objection. Counsel argued that, because the recording contained Arroyo's live interpretations of defendant's Spanish answers, the English-translation transcript was unnecessary. The State responded that the transcript's English translations allowed the court to assess whether Arroyo's live interpretations were accurate. Defense counsel then responded, "if the [d]efense believes that there's an unfair translation, we would certainly call a witness to that effect." Defense counsel further stated, "[a]t this point, we don't take issue with the translation." Defense counsel indicated that "[w]e accept that Investigator Arroyo has accepted that it's fair and accurate." The court then admitted the audio-recording and the written transcript into evidence.
¶ 17 During the recorded interview, which was played for the court, defendant admitted to touching M.M.'s vagina with his hand and penis on approximately four occasions. However, he denied inserting his penis into the vagina. In addition, he admitted to placing his mouth, lips, and tongue on M.M.'s vagina. He further admitted to grabbing M.M.'s buttocks with his hands and rubbing his penis on her buttocks. Defendant was then asked if he "put it inside." Arroyo's live interpretation of defendant's answer was: "no just rubbing it on her butt. I did not insert it or anything." The written transcript's English translation of ...